Phillips v. Stynchcombe, 28122

• Decision Date: 09 November 1973
• Docket Number: No. 28122,28122
• Citation: 202 S.E.2d 26,231 Ga. 430
• Parties: Leon Dean PHILLIPS v. LeRoy N. STYNCHCOMBE.
• Court: Georgia Supreme Court

Page 26

202 S.E.2d 26

231 Ga. 430

Leon Dean PHILLIPS v. LeRoy N. STYNCHCOMBE.

No. 28122.

Supreme Court of Georgia.

Nov. 9, 1973.

Rehearing Denied Nov. 29, 1973.

Syllabus by the Court

1. Under the circumstances here, the appellant was not entitled to a commitment hearing as a requisite to his trial for a felony.

2. There is no merit in the enumeration that the appellant was not notified prior to trial of the witnesses to be used against him or to record their testimony.

3. The appellant was not entitled to be informed of the charges against him prior to trial other than by indictment.

4. The contention that the appellant's counsel was ineffective and incompetent was not valid.

5. The appellant was properly notified prior to his trial of the evidence and witnesses that the State intended to submit in aggravation of his sentence.

6. The enumeration that reversed convictions were improperly introduced in aggravation of sentence cannot be maintained.

7. Temporary relinquishment of a prisoner to authorities of another state does not waiver this state's right to have a prisoner returned for completion of his sentence.

8. The habeas corpus court did not err in not subpoenaing all of the appellant's requested witnesses and by not subpoenaing those who appeared with duces tecum as requested.

Leon Dean Phillips, pro se.

Lewis R. Slaton, Dist. Atty., Morris M. Rosenberg, James H. Mobley, Jr., Arthur K. Bolton, Atty. Gen., Atlanta, for appellee.

GRICE, Presiding Justice.

Leon Dean Phillips, also known as Ronald Davis, appeals from the denial of three habeas corpus petitions by the Superior Court of Fulton County.

One petition (No. 1555) alleged in substance as follows: (1) that the appellant was in the custody of the respondent Leroy N. Stynchcombe, Sheriff of Fulton County, by virtue of two consecutive 20 year sentences arising from his August, 1971, convictions for robbery and kidnapping in the superior court of that county; (2) that he was taken against his will to Kentucky to stand trial in September, 1972; (3) that he was returned to the respondent's custody in November, 1972; and (4) that as a result his Georgia sentence is satisfied and he is entitled to release.

The other two petitions (Nos. 1473 and 1479) challenged the appellant's confinement in the Fulton County jail under the authority of the 1971 armed robbery and kidnapping convictions and sentences. These convictions were affirmed by this court in Davis v. State, 229 Ga. 509, 192 S.E.2d 253.

The allegations in Nos. 1473 and 1479 were in essence that the appellant's present confinement was illegal because he was denied due process in the following particulars: (1) he was denied a commitment hearing prior to his trial; (2) he was not notified of the charges against him prior to trial; (3) he was not notified of the witnesses to be used against him and was not allowed to record their testimony prior to trial; (4) he had ineffective assistance of counsel; and (5) the prosecution submitted to the jury in aggravation of sentence a prior conviction for robbery although it knew that this conviction had been reversed by a United States District Court. Upon the habeas corpus hearing the petitioner further alleged (6) that a robbery conviction arising in Florida and also used in aggravation of punishment at the sentencing phase of the trial was reversed by a United States District Court in Florida; and (7) while the prosecution attempted to show that he had been convicted twice for escape, there was in fact only one such conviction.

After hearing evidence the habeas corpus court denied the petitions upon each and every ground.

There are eight enumerations of error upon appeal.

1. Under the circumstances here, the habeas corpus court properly ruled that the appellant was not entitled to a commitment hearing.

That court did not determine whether the appellant had in fact been denied a commitment hearing. Rather, it was of the opinion, expressed upon the respondent's motion to dismiss the petition, that even assuming he could substantiate his claim of denial of a commitment hearing, such would not void his conviction. The holding of a commitment hearing is not a requisite to a trial for commission of a felony.

We agree. See in this connection Holmes v. State, 224 Ga. 553, 556, 163 S.E.2d 803; Smith v. Brown, 228 Ga. 584, 585, 187 S.E.2d 142; Burston v. Caldwell, 228 Ga. 795(3), 187 S.E.2d 900; Hilliard v. Ballard, 229 Ga. 305, 191 S.E.2d 74; Thrash v. Caldwell, 229 Ga. 585(1), 193 S.E.2d 605. The decision in Manor v. State, 221 Ga. 866, 148 S.E.2d 305 is essentially different. It dealt with a coerced waiver of commitment hearing.

We know that cross examination of the state's witnesses at a commitment hearing often results in an accused obtaining valuable information for trial of the case. However, it should be remembered that the purpose of a commitment hearing is to authorize the keeping in custody of one accused with probable cause of committing a crime until the grand jury determines whether he should stand trial. See Code § 27-407; Cannon v. Grimes, 223 Ga. 35, 36, 153 S.E.2d 445; Smith v. Brown, 228 Ga. 584, 585, 187 S.E.2d 142, supra.

The federal courts share the view which we take. They hold that an accused has no constitutional right to a preliminary hearing. See Dillard v. Bomar, 342 F.2d 789, 790 (6 Cir.); Woods v. Texas, 404 F.2d 332 (5 Cir.).

The appellant did not raise this issue upon his criminal trial or appeal. He does not allege here and nothing in the record shows that he asked for and was denied a commitment hearing prior to his indictment by the grand jury. Since he has been indicted, tried and convicted, however, no useful purpose could now be served by remanding his case for a finding as to whether there was a commitment hearing. This fact does not affect the legality of his present detention, which is the only issue in a habeas corpus hearing. Johnson v. Plunkett, 215 Ga. 353(5), 110 S.E.2d 745; Ballard v. Smith, 225 Ga. 416(4), 169 S.E.2d 329; Thrash v. Caldwell, 229 Ga. 585(1), 193 S.E.2d 605, supra.

2. The appellant failed to present any evidence in support of his contention that he was not notified of the witnesses to be used against him prior to trial or to record their testimony.

However, the trial transcript, which was admitted in evidence at the habeas corpus hearing, shows from statements of both the assistant district attorney and the appellant's counsel that a list of witnesses was furnished to the appellant, and there was no evidence to the contrary.

The habeas corpus court correctly found that there was no authority to support the appellant's contention that he should have had an opportunity to cross examine witnesses and record their testimony prior to trial.

There is no merit in this enumeration.

3. There is likewise no validity in the appellant's enumeration that he was entitled to be 'formally' informed of the charges against him prior to trial other than by indictment.

He presented no evidence that he did not know of the charges against him. His criminal trial attorney testified that he was appointed to represent him some time prior to the date of the trial and that he had at least one discussion concerning the case with him at the Fulton County Jail.

The habeas corpus court found that the evidence did not support the appellant's contention in this regard, and his findings will not be disturbed where there is evidence to support them. Williams v. Caldwell, 229 Ga. 453(1), 192 S.E.2d 378 and cits.; Crawford v. Caldwell, 229 Ga. 809, 194 S.E.2d 470 and cits.

4. The habeas corpus court properly found that the allegations of ineffective and incompetent counsel were not substantiated.

The habeas corpus judge, who also presided at the criminal trial, found that 'a review of the trial transcript shows that petitioner's counsel provided diligent and vigorous representation,' and that appellant's allegations in this regard 'are an afterthought arising after an adverse verdict and without merit.'

We agree.

Appellant's arguments in support of this ground are an attempt to raise the sufficiency of the evidence and present nothing for decision upon petition for the writ of habeas corpus. See in this connection, Nolley v. Caldwell, 229 Ga. 441(6), 192 S.E.2d 151; Martin v. Ault, 229 Ga. 594, 193 S.E.2d 613.

5. The appellant's contention that he was not properly notified prior to his trial of evidence and witnesses the state intended to submit in aggravation of his sentence cannot be sustained.

The habeas corpus court found from the evidence presented at that hearing that the criminal court prosecutor furnished appellant's counsel a list of prior convictions intended to be introduced at the sentencing hearing in the event of a guilty verdict; and that the criminal trial transcript indicated that this notice was given 'prior to joining issue.'

The criminal trial prosecutor testified at the habeas corpus hearing that he learned just before trial that the appellant, who was tried under the name Ronald Davis, had a record of prior convictions under the name of Leon Dean Phillips; and that at his direction a list of these prior convictions was supplied to appellant's counsel prior to trial. A copy of this list was admitted in evidence upon the habeas corpus hearing and appellant's criminal trial counsel stipulated that it was the list he had received prior to trial.

The contention as to inadmissible testimony of witnesses was decided adversely to appellant on the direct appeal. Davis v. State, 229 Ga. 509(2, 3), 192 S.E.2d 253, supra. That opinion further states that the appellant was 'duly notified' that prior convictions would be used in the sentencing proceeding.

Therefore, in light of the fact that no issue of vague or improper notice was raised until this appeal, we find no error entitling the appellant to habeas corpus relief upon this ground.

6. We come now to the appellant's sixth...